[Cite as State v. Homolak , 2019-Ohio-869.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107040

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. ANDREW HOMOLAK

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610905-A

BEFORE: Yarbrough, J.,* Boyle, P. J., and Celebrezze, J.

RELEASED AND JOURNALIZED: March 14, 2019ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender

Paul A. Kuzmins Assistant Public Defender 310 West Lakeside Avenue, Suite 200 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor

Katherine Mullin Jennifer A. Driscoll Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113STEPHEN A. YARBROUGH, J.:* {¶1} A 39-count indictment outlined a series of crimes that defenda nt-appellant Andrew Homolak perpetrated against his two daughters over the course of several years during their childhood. He was accused of committing 12 counts of rape, 18 counts of kidnapping, and a multitude of other crimes. Homolak pleaded guilty to a subset of the crimes charged, including six counts of rape in violati on of R.C. 2907.02(A)(2), from which he appeals. On appeal, Homolak argues that his plea was not knowing, voluntary, and intelligent. We affirm. {¶2} In his sole assignment of error, Homolak complains that the trial court violated Crim.R. 11(C)(2)(a) because it “failed to inform [him] that his plea required a mandatory prison term.” Relatedly, he complains that the court failed to inform him that he was therefore ineligible for community control sanctions. {¶3} Crim.R. 11(C)(2)(a) provides that a trial court shall not accept a guilty plea in a felony case without first [d]etermining that the defendant is making the plea voluntarily, with the understanding of the nature of the char ges and of the max imum penalty involved, and, if applicable, that th e defendant is not eligible for probation or for the imposition of community control sancti ons at the sentencing hearing.

See also State v. Arnett , 88 Ohio St.3d 208, 214, 2000-Ohio-302, 724 N.E.2d 793 (“Rape carries a mandatory prison term under R.C. 2929.13(F)(2).”).{¶4} Crim.R. 11(C)(2)(a) requires a trial court to determine that the defendant has an awareness about the potential penalty before accepting a guilty plea. It does not, however, require the court to make any specific articulation as to the potential penalty. Compare Crim.R. 11(C)(2)(b)-(c) (both requiring that the court de termine that the defendant unders tands, but additionally requiring the court to specifically inform the defendant); see also State v. Davis , 8th Dist. Cuyahoga No. 76085, 2000 Ohio App. LEXIS 4044, 12 (Sept. 7, 2000) (“Although the judge must specifically

determine whether a defendant unders tands that he is not eligible for probation, the rule does not require him to personally inform a defendant of this fact in every circumstance. Crim.R. 11(C)(2) distinguishes between things the judge must determine from those of which he must inform a defendant regardless of whether an independent understa nding is shown.”). {¶5} The Supreme Court has encouraged trial c ourts to literally comp ly with Crim.R. 11, so as to ensure that guilty pleas are entered knowingly and voluntarily. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. While this remains the best practice, a court’s failure to literally comply with all aspects of the rule does not automatically invalidate a guilty plea. Id. at ¶ 30. Instead, a reviewing court must look to the nature of the claimed failure, determine whether there was actually a failure, and if so, determine its extent. Id. {¶6} Also relevant to this case, where a defendant claims the trial court failed to explain a nonconstitutional right, the relevant inquiry is wh ether the court substan tially complied with the

rule. See id. at ¶ 31. “Substantial compliance means that under the totality of the circumstances the defendant subj ectively understands the implications of his plea and the rights he is waiving.” State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v.

Stewart , 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). Thus , the relevant inquiry is whether absent the deficient explanation the defendant would have still pleaded guilty. Id.{¶7} This court has held that a court need not specifically inform a defendant that a particular conviction mandates prison or precludes a comm unity control sanction, where the record clearly indicates that the defendant was aware of this. See, e.g., State v. Smith, 8th Dist. Cuyahoga No. 83395, 2004-Ohio-1796, ¶ 11 (“The mere f act that the court did not specifically say ‘[y]ou are ineligible for probation’ or ‘[t]his offense requires a mandatory term of prison’ will not be fatal unless the record clearly indicates th at the defendant was unawa re that he would be sent to prison upon a plea of guilty and he was prejudiced by that fact.”); see, e.g., State v. McLaughlin , 8th Dist. Cuyahoga No. 83149, 2004-Ohio-2334, ¶ 19 (“[T]he trial court need not specifically inform the defendant he is ‘ineligible for probation’ if the totality of the

circumstances warrant the trial court in making a de termination the defe ndant understands the offense is ‘nonprobational.’”). {¶8} At Homolak’s change of plea hearing, the state put the plea agreement on the record: Homolak would plead guilty to six counts of ra pe in violation of R.C. 2907.02(A)(2), each a felony of the first degree, and each punishable by a possible term of incarceration of 3 to 11 years. The court asked Homolak’s counsel if that was correct. Counsel responded: Judge, that’s correct. We’ve reviewed this with [Homolak] a couple of times since it’s been offered to us. * * * He will be entering a guilty plea to those knowingly, intelligently, and voluntarily, Judg e, of his own free will. And I’ve also explained the constitutional rights that one has that one gives up when you enter a plea as opposed to going to trial. I know you’ll go over those as well, Judge, but he’s aware of that. He’s an intelligent guy. He knows what’s going on. I’ve made no promises whatsoever.

I’ve indicated to him that the Court ha s to make the decision on sentencing. I can’t advise him as to what the senten ce would be, but he knows what the range is.{¶9} The court then confirmed th at none of the six rape counts would merge for the purposes of sentencing before conducting th e plea colloquy. The court inquired about

Homolak’s counsel and reiterated the potentia l penalties he faced: The Court: Have you had enough time to consult with your attorney? Homolak: Yes, ma’am. The Court: Are you satisfied with his representation? Homolak: Yes, ma’am.

* * * The Court: Do you understand the penaltie s that could be imposed for these offenses * * * which are all counts of rape? Those are felonies of the first degree. They could carry a potential penalty of three to 11 years in prison, a fine of up to $20,000. Homolak: Yes, ma’am.

* * *

The Court: Let the record reflect th e defendant is making a knowing, intelligent, and voluntary decision to withdraw his not guilty pleas and enter pleas of guilt. {¶10} Although the trial court never specifically stated that pr ison was mandatory or that Homolak was ineligible for community control sanctions, review of the record indicates that he was nevertheless subjectively aware. Based on the totality of the circumstances, we find the court substantially complied with Crim.R. 11(C)(2)(a).{¶11} Homolak pleaded guilty to six different counts of rape pertaining to his two daughters over the course of se veral years of their childhood. Th e court discussed that the six counts would not merge for purposes of sentenci ng and that each count was punishable with a term of imprisonment ranging from 3 to 11 years in prison. His counsel indicated that they “reviewed” the plea offer multiple times, that Homolak was an “intelligent guy,” who “knows what’s going on,” and as to his possible se ntence, he “knows what the range is.” {¶12} Moreover, the record is devoid of any i ndication that Homolak would be sentenced to a community control sanction. It was never discussed. Ther e is no indication that Homolak pleaded guilty in order to escape a prison sentence. To the contrary, due to the nature and severity of his crimes, Homolak had no basis to conclude that he would not be sentenced to prison. {¶13} Homolak argues that this case is similar to State v. Tutt , 2015-Ohio-5145, 54 N.E.3d 619 (8th Dist.), a decision from this court findi ng that the trial court failed to substantially comply with Crim.R. 11(C)(2)(a) where the defe ndant did not subjectively understand he would be subject to a mandatory prison sentence for drug offenses. That panel found “nothing * * * in the record that indicates [the defendant] subjectively understood * * * he would have to serve a mandatory prison sentence * * *.” Id. at ¶ 26. Additionally, the panel in Tutt , found it relevant that “[t]he offenses at issue — while very serious — were drug offenses, not the type of heinous

crimes for which a defendant w ould have no reason to expect the imposition of community

control sanctions.” Id. at ¶ 27. For the reasons discussed, we find this case distinguishable. {¶14} Because the record reflects that Homola k subjectively understood that he faced a mandatory prison sentence, we find the trial court substantially complied with Crim.R. 11(C)(2)(a), and overrule the assignment of error.{¶15} While we do not require it, the trial court might consider as a better practice to avoid this and other similar appeals, the use of written plea agreements signed by the state and the defendant. Many other trial c ourts find this practice useful. {¶16} Judgment affirmed. It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Th e defendant’s conviction having been affirmed, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

______________________________________________ *STEPHEN A. YARBROUGH, JUDGE MARY J. BOYLE, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR *(Sitting by Assignment: Judge Stephen A. Yarbrough, retired, of the Sixth District Court of Appeals).